Allen v. Autenrieth
| Citation | 280 S.W. 79 |
| Decision Date | 02 February 1926 |
| Docket Number | No. 19317.,19317. |
| Parties | ALLEN v. AUTENRIETH. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.
"Not to be officially published."
Action by Olive Allen against Arthur Autenrieth. From a judgment for plaintiff, defendant appeals. Affirmed.
George F. Heege, of Clayton, for appellant.
Mark D. Eagleton, of St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff when struck by defendant's automobile at the intersection of Lindell boulevard and Euclid avenue in the city of St. Louis on June 7, 1923. Verdict and judgment were for plaintiff in the sum of $3,000, from which defendant has appealed. The several assignments of primary negligence in the petition were abandoned by plaintiff, and her case submitted solely upon defendant's alleged violation of the humanitarian doctrine. The answer was a general denial, coupled with three pleas of contributory negligence. The reply was conventional.
Lindell boulevard runs east and west, and Euclid avenue north and south. Lindell is approximately 100 feet, and Euclid 60 to 70 feet, in width. About 10 o'clock in the evening of June 7, 1923, plaintiff, 45 years of age, accompanied by her daughter, attempted to cross Lindell boulevard from the north to the south at the usual pedestrian crossing on the east side of Euclid. The daughter was walking to the left of plaintiff. When she came to within 10 feet of the south curb she was struck by defendant's automobile running eastward on Lindell, and rendered unconscious. Neither she nor her daughter saw or heard the car before it was upon them.
Clyde Erskine, branch manager of the Mack Motor Company in St. Louis, was driving his automobile westwardly on Lindell, and, when 250 feet east of Euclid, first observed defendant's car when it was at the west side of Euclid. Plaintiff and her daughter at that time were 12 feet south of the middle of Lindell. The car came "directly straight" across Euclid, a distance of 60 feet, and struck plaintiff and her daughter, rolling plaintiff underneath the car, and carrying the daughter upon it. After striking plaintiff, defendant's car ran 30 feet before it was stopped. Erskine estimated that from the time he first saw defendant's auto until it struck plaintiff—or while it ran 60 feet—plaintiff and her daughter walked 7 feet. He observed no other cars near Euclid at the time.
R. Morton Moss, residing at 4643 Lindell, about 110 feet east of Euclid, was sitting in his automobile, which was parked facing west in front of his residence, and observed plaintiff and her daughter crossing the street. He first saw defendant's car when it was about 10 feet west of Euclid, and watched it until plaintiff was struck. He estimated that the speed of defendant's car was 30 to 35 miles an hour, and that, after striking the plaintiff, it ran 20 to 25 feet before it was stopped. He immediately ran to the scene of the accident and helped pick up the plaintiff, who was bleeding about her head. No other cars had been observed by him near Euclid just prior to the accident. Defendant's own evidence was to the effect that he crossed Euclid at a speed of 12 miles an hour; that he never saw the women before he struck them; that he applied his brakes instantly; that he could have stopped his car, running at a speed of 12 miles an hour, in 12 feet; and that as he crossed Euclid avenue his view of the whole street in front of him was absolutely clear. The street lights, as well as the lights on defendant's automobile, were burning at the time of the accident.
Plaintiff was taken from the scene of the accident to Barnes Hospital, where she remained 4 days. While there she was in the charge of Dr. Ernest Sachs, who found her suffering from a lacerated scalp wound and contusions of her shoulders and right leg, knee, and ankle. X-ray pictures taken at the time showed no evidence of fractured bones. From Barnes Hospital she was taken to the home of a friend, Mrs. Laura Arterburn, at 3615 Shenandoah, with whom she remained for 3 weeks. For the first week plaintiff's meals were served to her in bed.
After leaving the hospital, plaintiff was under the care of Dr. Joseph J. Meredith, and retained him as her physician until the following September. He found her in a very'highly nervous condition. Her ribs, which were bandaged, were very sensitive to touch, and she was suffering from a sprain and strains of the muscles of her back. Eventually he removed the stitches from the cut on her head. A sac of mucopurulent fluid formed on plaintiff's right ankle, which Dr. Meredith opened and drained on two occasions. The condition of plaintiff's ankle became such that she was referred to Dr. William P. Glennon, who, on January 4, 1924, performed an operation upon it at St. John's Hospital, and removed a blood cyst, which in his opinion, was the result of trauma. Plaintiff remained in the hospital for 10 days:
On February 22, 1924, plaintiff employed Dr. D. C. Todd, whose examination disclosed a bruise or discolored area, with a recent scar upon the right ankle; a considerable amount of varicose veins on the right leg, extending up to and slightly beyond the knee; and a tender area in the back from the second to the fourth lumbar vertebra. Functionally, plaintiff was very nervous, and was underweight and anemic. Dr. Todd thought that it might reasonably be expected that plaintiff would suffer pain in her back in the future; that the varicose veins could have been the result of her accident; that the condition of the ankle might produce pain upon using it or walking upon it; and that the scar tissue and varicose veins were permanent.
Prior to her injury plaintiff had been a saleslady at Sonnefeld's. She returned to work on September 18, 1923, but, due to her nervous condition, was able to continue for only 3 days. She then secured employment with the Butterick Publishing Company, and remained with them until December 10, 1923. After the operation performed by Dr. Glennon upon her ankle, she did no more work until June 15, 1924, when she opened a beauty parlor. Plaintiff herself was unable to serve her customers, but was forced to employ an operator. She testified that she was still suffering intense pain at the time of the trial, January 26, 1925.
Although defendant unsuccessfully demurred at the close of all the evidence, he does not question the correctness of the court's ruling in permitting the case to go to the jury. Error is assigned, however, to the action of the court in submitting the last chance doctrine to the jury in plaintiff's instruction No. 1; the contention being that there was no evidence to support such instruction. The stated facts clearly indicate that this assignment is without merit.
Plaintiff was walking at the ordinary crossing place for pedestrians. When defendant's car was yet 60 to 70 feet from the point of collision, plaintiff was 12 feet south of the middle of the street. The fact that she did not see defendant's car proves that she was oblivious to her peril. She was proceeding across the street under such circumstances as to have indicated to defendant that it was her present intention to continue until the sidewalk was reached. There was nothing between plaintiff and defendant to have...
To continue reading
Request your trial
-
Hancock v. Crouch
...321, 324(6); Beeler v. Miller, Mo.App., 254 S.W.2d 986, 991(8); Plannett v. McFall, Mo.App., 284 S.W. 850, 854(11); Allen v. Autenrieth, Mo.App., 280 S.W. 79, 81(4)]; that defendants' complaints about the argument of plaintiff's counsel were presented to the trial court in the motion for ne......
-
Randol v. Kline's, Inc.
...Co., 19 S.W. (2d) 633; Gettys v. Am. Car & Foundry Co., 16 S.W. (2d) 90; Irons v. Am. Ry. Express Co., 300 S.W. 292; Allen v. Autenrieth (Mo. App.), 280 S.W. 79; Ranier v. Railroad Co., 271 S.W. 506; Huhn v. Reprecht, 2 S.W. (2d) 764. (b) Counsel's remarks are not contrary to the law. Kinlo......
-
Curtis v. Ficken
... ... 156, 207 N.W. 261; ... Rudd v. Jackson, 203 Iowa 661, 213 N.W. 428; ... Remmel v. Czaja, 183 Wis. 503, 198 N.W. 266 ... [4]Allen v. Autenrieth, (Mo. App.) ... 280 S.W. 79; D. & H. Truck Line v. Lavallee, (Tex ... Civ. App.) 7 S.W.2d 661; Lewis v. Beckard, 118 Neb ... 533, ... ...
-
Bishop v. Musick Plating Works
...our province to convict him of error in the rulings made. [Irons v. American Railway Express Co. (Mo. Sup.), 300 S.W. 283; Allen v. Autenrieth (Mo. App.), 280 S.W. 79; Plannett v. McFall (Mo. App.), 284 S.W. 850; Tucker v. Hagan (Mo. App.), 300 S.W. 301; Wair v. American Car & Foundry Co. (......